Αναδρομική ανάκληση σύνταξης που χορηγούνταν για μακρό χρονικό διάστημα και παραβίαση του δικαιώματος στην περιουσία, απόφαση του ΕΔΔΑ

CASE OF ROMEVA v. NORTH MACEDONIA

(Application no. 32141/10)

(…)

60.  It is not disputed between the parties that the Fund’s decision of 18 October 2007, which retroactively divested the applicant of the retirement pension that she had been receiving since May 2000, amounted to an interference with her possessions within the meaning of Article 1 of Protocol No. 1. The Court sees no reason to hold otherwise (see, among other authorities, Fábián, cited above, § 62, and B. v. the United Kingdom, no. 36571/06, §§ 36 and 41, 14 February 2012). The Fund’s civil claim against the applicant (see paragraphs 23-25 above) for reimbursement of amounts paid to her between 2000 and 2007 is a consequence of the original interference with the applicant’s possessions, and as such, it will be examined by the Court in its assessment of the proportionality of the interference.

61.  In the circumstances of the present case, the Court considers that the applicant’s complaint should be examined under the general rule enunciated in the first sentence of the first paragraph of Article 1 of Protocol No. 1, especially as the situations envisaged in the second sentence of the first paragraph and in the second paragraph are only particular instances of interference with the right to peaceful enjoyment of property as guaranteed by the general rule set forth in the first sentence (see Beyeler, cited above, § 106, and Perdigão v. Portugal [GC], no. 24768/06, § 62, 16 November 2010). The Court will now assess whether that interference was prescribed by law, whether it pursued a legitimate aim, and whether there was a reasonable relationship of proportionality between the means employed and the aim pursued (see, among many others, Broniowski, cited above, §§ 147-51).

(ii)  Lawfulness of the interference

62.  The Court finds that a proprio motu review of a final decision granting a pension is provided for in section 143 of the Pensions and Disability Insurance Act (see paragraph 29 above). Furthermore, the decision that deprived the applicant of her pension was based on section 258 of the Administrative Proceedings Act, which permitted a proprio motu review of a final decision in administrative proceedings, including proceedings relating to pensions (see paragraph 32 above).

63.  Noting that its power to review compliance with domestic law is limited (see, among other authorities, Kudrevičius and Others v. Lithuania [GC], no. 37553/05, § 110, ECHR 2015), the Court accepts that the proceedings in the applicant’s case were reopened as a consequence of the discovery of a mistake made by the Fund in its original assessment of the applicant’s eligibility for a pension. The procedure for a proprio motu review that caused the applicant to be divested of the right to a pension was thus used to correct that error.

64.  The foregoing considerations are sufficient to enable the Court to conclude that the interference with the applicant’s property rights was provided for by law, as required by Article 1 of Protocol No. 1 to the Convention.

(iii)  Legitimate aim

65.  The Court considers that depriving the applicant of her retirement pension pursued a legitimate aim – namely to ensure that the public purse was not called upon to subsidise for an indefinite period of time undeserving beneficiaries (see, for example, N.K.M. v. Hungary, no. 66529/11, § 59, 14 May 2013).

(iv)  Proportionality

66.  The Court must next examine whether the interference with the peaceful enjoyment of possessions struck a fair balance between the demands of the general interest of the public and the requirements of the protection of the individual’s fundamental rights, or whether it imposed a disproportionate and excessive burden on the applicant (see, among other authorities, Béláné Nagy, cited above, § 115).

67.  The Court notes that prior to the internal audit, the Fund’s records showed that the applicant had been employed during the period 1963-1967. It was only after the internal audit in the case of the applicant that irregularities appeared, in so far as the applicant’s employment booklet was found to be missing from the records, necessitating a request to the applicant’s former employer for data to confirm the accuracy of the Fund’s records, which were incomplete. In the absence of any information from that employer that the applicant had indeed been employed between 1963 and 1967, the Fund concluded that the data regarding her employment for the above-mentioned period had been erroneously entered in its records.

68.  In this connection, the Court notes that it has already found that there is nothing to suggest that the applicant was responsible for the incorrect assessment by the Fund of her pension request (see paragraphs 41-44 above; also contrast Kusina, cited above; and Zahi v. Croatia (dec.), no. 24546/09, §§ 63-67, 18 March 2014). On the contrary, it was the Fund’s lack of diligence in properly gathering and maintaining the relevant data in respect of the applicant and in processing her initial claim for a pension that led to the erroneous decision, which the Fund later sought to correct at the applicant’s expense (contrast B. v. the United Kingdom, cited above, § 39). The Government’s argument that the applicant had supplied the Fund with erroneous information regarding her past employment should therefore be dismissed (see paragraphs 51 and 52 above).

69.  Further to this point, the Court observes that the applicant’s claim that she had worked for various employers through “youth groups” between 1963 and 1967 was not contested by the Government.

70.  Being mindful of the importance of social justice, the Court would reiterate in this regard that, as a general principle, public authorities should not be prevented from correcting their mistakes – even those resulting from their own negligence. Holding otherwise would be contrary to the doctrine of unjust enrichment. It would also be unfair to other individuals contributing to social security funds – in particular those denied a benefit because they failed to meet the statutory requirements. Lastly, it would amount to sanctioning an inappropriate allocation of scarce public resources, which in itself would be contrary to the public interest (see, for example, Čakarević v. Croatia, no. 48921/13, § 79, 26 April 2018).

71.  Notwithstanding those important considerations, the Court nonetheless notes that the aforementioned general principle cannot prevail in a situation where the individual concerned is required to bear an excessive burden as a result of a measure divesting him or her of a benefit (see B. v. the United Kingdom, cited above, § 60). If a mistake has been caused by the authorities themselves, without any fault on the part of a third party, a different proportionality approach must be taken in determining whether the burden borne by an applicant was excessive.

72.  In assessing compliance with Article 1 of Protocol No. 1, the Court must carry out an overall examination of the various interests in issue (see Perdigão, cited above, § 68), bearing in mind that the Convention is intended to safeguard rights that are “practical and effective” (see, for example, Chassagnou and Others v. France [GC], nos. 25088/94 and 2 others, § 100, ECHR 1999 III). It must look behind appearances and investigate the realities of the situation complained of (see Broniowski, cited above, § 151; Hutten-Czapska v. Poland [GC], no. 35014/97, § 168, ECHR 2006 VIII; and Zammit and Attard Cassar v. Malta, no. 1046/12, § 57, 30 July 2015). That assessment may involve the conduct of the parties, including the means employed by the State and their implementation. In that context, it should be stressed that uncertainty – be it legislative, administrative or arising from practices applied by the authorities – is a factor to be taken into account in assessing the State’s conduct. Indeed, where an issue in the general interest is at stake, it is incumbent on the public authorities to act in good time, in an appropriate and consistent manner (see Tunnel Report Limited v. France, no. 27940/07, § 39, 18 November 2010, and Zolotas v. Greece (no. 2), no. 66610/09, § 42, ECHR 2013 (extracts)).

73.  In this regard the Court attaches particular importance to the fact that the revocation of the decision to grant a pension to the applicant was not based upon any new evidence but only upon a reassessment of the same evidence which was at the basis of the administrative decision, which became final as it had not been contested before the courts. In the Court’s view such a reassessment of evidence ex proprio motu ‒ outside the system of extraordinary remedies for quashing final administrative decisions ‒ brings into question legal certainty in the area of social security.

74.  In addition, the Court notes that the case at hand does not concern a suspension of the applicant’s pension, but the complete loss of her pension entitlements (see Apostolakis v. Greece, no. 39574/07, § 39, 22 October 2009; also contrast Fábián, cited above, § 74, and cases cited therein). The fact that she obtained a new pension entitlement as of 3 November 2009 on the basis of a subsequent legislative change is of no relevance in respect of the deprivation itself (see paragraph 27 above).

75.  The Court observes that prior to obtaining a pension the applicant had been dependent on the State’s social benefits scheme and had been in receipt of unemployment benefit (see paragraph 7 above). Owing to the applicant’s specific circumstances, the retirement pension had constituted her sole source of income for a period of over nine years. For more than two years of that period, being deprived of her pension, she had had no income whatsoever (see paragraph 26 above).

76.  Moreover, the Court surmises that the civil claim against the applicant and the enforcement proceedings aimed at claiming the reimbursement of the pension benefits paid to her (see paragraphs 23-25 above) are capable of further aggravating her already difficult financial situation (see Čakarević, cited above, § 89).

77.  Given the circumstances described above, it must be observed that   as a result of the impugned measure ‒ the applicant was faced, practically from one day to the next, with the total loss of her retirement pension, which constituted her sole source of income (see, among others, Moskal, cited above, § 74).

78.  In view of the above considerations, the Court finds that a fair balance has not been struck between the demands of the general interest of the public and the requirements of the protection of the individual’s fundamental rights and that the burden placed on the applicant was excessive.

79.  It follows that there has been a violation of Article 1 of Protocol No. 1 to the Convention.

Πηγή: https://hudoc.echr.coe.int

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